COPYRIGHT AMENDMENT BILL PUBLIC HEARINGS ON THE COPYRIGHT AMENDMENT BILL Venue: Room E249, 2nd Floor, National Assembly Wing Date: 4 August 2017 Time: 13:30 – 14:10 Spoor & Fisher’s Oral Submissions Presented by Herman Blignaut

Brief Overview Spoor & Fisher is a boutique law firm established in 1920. Focus is exclusively on intellectual property law and practice, e.g. registration of trade marks, patents, designs, plant breeders rights; enforcement of IP rights; commercial IP work, e.g. licensing, assignments and other agreements. Has no interest in the amendments other than working to ensure that amendments are legitimate and capable of practical application. Part of the SAIIPL who made its own oral submissions on 1 August 2017 (14:40 – 15:20) Spoor & Fisher wishes to add its voice and weight behind the SAIIPL’s submissions. We are as legal practitioners aligned with the SAIIPL’s position on the Bill and wish to reiterate also what it stated.

User…, Performer…, Producer…? Repeated reference to “user performer, owner, producer or author” of a copyright protected work e.g. see Sections 4(c), 5(c), 6 - 8(g), 8 – 9 A, 9 B(3) of the Bill. Proposed amendments in this regard are simply wrong in law. Person entitled to a royalty is the owner of the right. “user” or “performer”, for example, has no claim / entitlement to a royalty Section 4(c) further suggests that copyright in a work can be transferred by, inter alia, the “user” or “performer” of the work. Cannot assign rights which you do not own. Only person who can assign copyright is the owner thereof. All references to sections that include repeated reference require serious reconsideration and revision.

Resale Royalty Right Author of an artistic work entitled to royalty on the commercial resale of his work. “artistic work” means, irrespective of the artistic quality thereof - (a) paintings, sculptures, drawings, engravings and photographs; (b) works of architecture, being either buildings or models of buildings; or works of craftmanship not falling within either paragraph (a) or (b). The works to which the resale royalty right applies must be limited to, e.g. “works of visual arts” such as paintings. “Works of Visual arts” should have its own definition. Failure to limit scope of the right could have the effect that every time that, for example, a house / building is sold, a resale royalty would be payable in respect of its transfer.

Resale Royalty Right Section 9E(1) states that assignment / waiver of resale royalty right is unlawful It’s referred to earlier as an “inalienable right”; Doing something that is not possible can certainly not be labelled an offence – provision is unnecessarily harsh. Section 9F(2) speaks to “a bequest of an artistic work by an author who did not transfer authorship of that work …” “Authorship” of a work protected by copyright can never be transferred; It is an inalienable right; Right to paternity under the author’s moral rights entitles another to always be acknowledged as such. Another proposed amendment which is simply wrong in law.

Free rein to copy for educational / academic activities Section 13B of the Bill allows any person to copy works for the purpose of education / academic activities. Education is big business, e.g. private schools, academies etc who have shareholders. Problematic if the rights of authors are limited to permit blanket copying of their works without compensation.

Restrictions on Assignment of Copyright State not allowed to assign its own copyright – See Section 21(a)(1) Why would Government limit itself only in the ways / manners it could possibly commercialise / exploit the copyright it owns? Assignments of copyright valid for 25 years only – See Section 21(b)(3) Proposed amendment is highly problematic because: It applies to all works in which copyright subsists, but should at least be limited to, for example, musical works; Does not say what happens after the 25 year term, e.g. Whether ownership revert back to the author(s). If this is the intention it should be specifically provided for; It unduly limits parties’ freedom to contract. Serious reconsideration and revision required.

Orphan Works Person who wishes to obtain licence to perform a restricted act in relation to a work whose owner is unknown or cannot be located, faces extremely onerous requirements before licence will be granted, e.g. Publish intention in Gazette as well as English and another language newspapers with national circulation; Conduct searches of various sources, databases etc. If regard is had to everything prescribed, requirements seem unnecessarily onerous in that it will likely take too long and be prohibitively expensive to comply with process. Sections could be reconsidered and revised for a less stringent process (e.g. quicker and cheaper process).

Food for Thought Copyright litigation is prohibitively technical and expensive. What can be done to make it both easier and cheaper for copyright owners to enforce their right? Possible solution could be to follow example set by the Copyright in Cinematograph Films Act (No. 62 of 1977) that makes provision for a system whereby copyright in films ban be registered. Registration under this Act not a sine quo non for protection, but simply enables the registered proprietor thereof to enforce its right easier than would be the case if it was not registered. Consideration could be given to introduce similar measures to copyrighted works across the board.

Q & A Q & A?

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